The Lord Lyon and his Jurisdiction

This page contains documents and analysis pertaining to the judicial powers
of Lord Lyon in Scotland, in particular relating to nobility, chiefships
of clans, and precedence.

This page is under construction, in the sense that my inquiries
are on-going, and my opinions are far from definitive. I present these
documents and commentary in the hope of stimulating some critical thinking
and I remain very much open to discussion.

Introduction

Sir Thomas Innes of Learney (1893-1971) was Lord Lyon from 1945 to 1969,
after having been Carrick Pursuivant and Albany Herald in the 1930s. He
was a very active Lord Lyon, strongly promoting his views of what his office
was through his writings and pronouncements in his Court. In 1950, he convinced
the Scottish Law Times to start publishing his decisions in the
Lyon Court. By ruling on uncontested petitions, he was able to expound
many of his theories in court but not under review of his superior court,
and get them published in the judicial record. His treatise, Scots Heraldry,
was first published in 1934 when he was Carrick Pursuivant; then a second,
enlarged edition came out in 1956, and it has practically eclipsed earlier
works on the subject. In particular, Stevenson's 1914 Heraldry in Scotland,
itself a considerably enlarged revision of an earlier legal work by Seton,
has been completely forgotten, in large part because the run was limited
to 540 copies (see the bibliography
for references). Nowadays, most accessible writing on Scottish heraldry
is by Innes or relies completely and uncritically on Innes's writings.

Innes of Learney's views of the powers of his office were not, however,
shared by all. It is important to understand a few things:

Lyon's office has a dual nature: judicial and ministerial.
In his judicial capacity, Lyon is an inferior judge in the Scottish
judicial system, and his court is the Lyon Court. There is appeal of his
judgments to the Scottish Court of Session and from there to the House
of Lords in Westminster. In his ministerial capacity, Lyon is acting
in an executive capacity, because the royal prerogative in certain matters
has been explicitly delegated to him. Put briefly, as a judge Lyon makes
enforceable rulings, as an officer he carries out the sovereign's will.

Lyon's Court, being a court of law, is part of the Scottish judicial system.
Since Lyon's Court is an inferior court, Lyon's decisions are subject to
review by higher courts, namely the Court of Session and the House of Lords.
Decisions by the judges of these latter courts overrule decisions by Lyon.

Lyon is not free to determine what his jurisdiction and powers are. Indeed,
under the rule of law, no judge or officer is, or should be. The jurisdiction
and powers are determined by statute, by institutional writers (jurists
whose Institutes or textbooks of law have acquired sufficiently
high standing) or long, accepted continuous practice. It is not enough
for Lyon to say that he can do this or has the power to decide that.

Innes of Learney's writings contain a number of theories which are quite
novel, despite his claims that they are grounded in the mists of Scotland's
feudal past. Most notable is the claim that a grant of arms in Scotland
confers what he calls "noblesse" and equates with nobility. There are also
other claims, such as his right to decide disputes over chiefships of clans
or branches of clans, his right to decide disputes of precedence, his right
to confer nobility to non-physical persons such as corporations or associations,
etc. It is my contention that none of these claims were ever made before
Innes of Learney, and that all current statements of these claims in other
sources can be traced to Innes of Learney's influential writings.

My doubts on the matter were aroused by the question of nobility. I
was curious to know why nobility in Scotland was so different from anywhere
else in Europe, in being bound to coats of arms, as Innes alleged. The
more I read Innes, the more I became curious about the extensive powers
he claimed for himself.

Since Lyon is part of the judicial system, I reasoned, one ought to
find confirmation of such powers in law textbooks. So I went for a fairly
commonplace text, the Introduction to the Law of Scotland by Gloag
and Candlish Henderson, 9th edition, 1987, p. 25, and found:

"The Lord Lyon King of Arms has jurisdiction, subject to appeal to
the Court of Session and the House of Lords, in questions of heraldry,
and the right to bear arms. (Hunter v. Weston (1882) 9 R 492, Mackenzie
v. Mackenzie (1920) S.C. 764, affd. 1922
S.C. (H.L.) 39.) He has no jurisdiction to determine rights of precedence
(Royal
College of Surgeons v. Royal College of Physicians, 1911 S.C. 1054.),
nor to decide a disputed question of chiefship or chieftainship. (Maclean
of Ardgour v. Maclean, 1938 S.L.T. 49; and see 1941
S.C. 613.)"

This text, and the references it contains, has led me to some interesting
discoveries, which unravel Innes of Learney's claims about his own powers.

Lord Lyon's Jurisdiction

On Appeal from the Lord Lyon

Lord President in the Court of Session, College of Surgeons of Edinburgh
v. College of Physicians of Edinburgh (1911
S.C. at p. 1060):

"Now, your Lordships will have already noticed that this petition is
presented as a petition to the Lyon King of Arms in his capacity as a Judge
in one of the inferior judicatories of Scotland. From that inferior judicatory
an appeal lies to your Lordships' Court and your Lordships have to determine
upon the merits such things as come from that Court by appeal. and I think
it is a corollary of that that your Lordships would enforce any decree,
which was pronounced, by the usual methods by which the Court enforces
its decrees."

"The Court of the Lyon is an inferior Court, and from inferior Courts
there lies an appeal to the Court of Session, and final interlocutors
of the Court of Session in civil matters are appealable to your Lordships'
House."

* Interlocutor (Scots Law): A judgement or order of a
court or of the Lords Ordinary, signed by the pronouncing or presiding
judge. `Interlocutors, correctly speaking, are judgments or judicial orders
pronounced in the course of a suit, but which do not finally determine
the cause. The term, however, in Scotch practice, is applied indiscriminately
to the judgments or orders of the Court, or of the Lords Ordinary, whether
they exhaust the question at issue or not' (Bell Dictionary of the Law
of Scotland 1861).

There has been one other instance of a case appealed from Lyon Court
(1985 S.L.T. (Lyon Ct.) 6) to the Inner House (1985 I.H. 158) and thence
to the House of Lords (1986 H.L. 463). The case, Dunbar of Kilconzie, brought
against each other two half-brothers; one was older than the other, but
born illegitimate, but legitimated by marriage afterwards. On the death
of their father in 1953 or thereabouts, the younger born-legitimate brother
inherited the baronetcy. Then, in 1968, an act made effective in Scotland
an act which had become effective in England in the 1950s which removed
the exclusion of hereditary honors from the provisions of the Legitimacy
Act of 1926 (16 & 17 Geo V c. 60). The presently legitimated older
brother decided that he was in fact the heir. Lyon dismissed his petition,
he appealed to the Court of Session which upheld, he appealed to the House
of Lords which upheld.

Innes of Learney, in his article in the Juridical Review (1940),
has argued that Lord Lyon has privative jurisdiction on all causa armorum,
and that the Court of Session can only be appealed to reduce a matriculation
that is found to infringe someone's rights. I am not sure I can make sense
of that assertion; if Lyon decides incorrectly that A is entitled to an
undifferenced coat of arms, that B sues and that Lyon's decision is overturned
by the Court of Session, the result will take the form of a reduction of
the incorrect matriculation; it remains that Lyon's decision in a
matter of coat of arms can be overturned, and therefore Lyon does not have
privative
jurisdiction in cases of arms.

On Precedence

Lord Wark in the Court of Session, in Maclean of Argour v. Maclean (1941
S.C. 613, at p. 657):

Lord President in the Court of Session, College of Surgeons of Edinburgh
v. College of Physicians of Edinburgh (1911
S.C. at p. 1060):

"... there is no trace in the statutes which deal with the office of
the Lyon of any jurisdiction being given in the matter of precedency. There
is no authority for it in any text writer—because the note that was quoted
of a very learned editor of "Erskine" is not an authority—and there is
admittedly no recorded instance of a decision of such a matter. I think
that is enough to dispose of the case ... "

Lord Mackenzie in the Court of Session, College of Surgeons of Edinburgh
v. College of Physicians of Edinburgh (1911
S.C. at p. 1064):

"I am of the same opinion. No statute has been referred to which confers
such a jurisdiction; no institutional writer says that such a jurisdiction
exists; and, as the Lord Lyon states in the note appended to his interlocutor,
there is no instance on record of a case in which such a jurisdiction has
been exercised. The reason for this is that a right of precedence by itself
is not a legal entity which can properly be made matter of a judgment that
can be enforced by a Court of law. The King determines by the exercise
of the royal prerogative the scale of precedence. The duty of the Lyon
King of Arms is ministerial, to see the order is observed and kept."

John Horne Stevenson, in his book Heraldry in Scotland, takes notice
of the fact on p. 69, n.1: "It was decided by the Court of Session, and
not appealed from, in the case of the Royal College of Surgeons of Edinburgh
v. the Royal College of Physicians of Edinburgh, 23d June 1911, S.C., that
Lyon has no jurisdiction to grant a declarator of a right of Precedence."

The Stair Encyclopaedia of Scots Law writes (vol. 6, p.485, para
1018; footnotes are between brackets):

"With regard to the Lord Lyon's jurisdiction in relation to the question
of precedence there is considerable doubt. The question was considered
by the Court of Session in litigation between the Royal College of Surgeons
and the Royal College of Physicians of Edinburgh, where Lord Johnston remarked
that: 'the present question [that is the question between the two colleges]
must be disposed of without a full examination into the history of the
matter, which might adduce information which is not before us at present.'[1911
SC 1054 at 1061, 1911 2 SLT 134 at 138, per Lord Johnston]
In that case the court decided that Lyon had no jurisdiction in the question
of precedence bebause: 'a right of precedence by itself is not a legal
entity which can properly be made a matter of judgment that can be enforced
by a court of law.'[1911 SC
1054 at 1064, 1911 2 SLT 134 at 139, per Lord Mackenzie]
In England it is evident that questions of precedence may be a matter of
judgment.[G. D. Squibb The Law of Precedence in England
(1980)] In a later case Lord Justice-Clerk Aitchinson
is reported to have observed during argument that if the question of Lyon's
jurisdiction in relation to precedence again came up on appeal the court
would immediately send it to seven judges.[Law Society
of Scotland SLT (Lyon Ct) 2 at 4.] Lord Lyon Innes of
Learney in 1955 took the view that the extent of Lyon's jurisdiction was
'to determine as between the parties what the Crown has done, and thereafter
apply it without prejudice to what the Crown may thereafter do.'[Law
Society of Scotland SLT (Lyon Ct) 2 at 4.] It would appear
that Lyon may administratively make certain determinations regarding precedence.
[Law
Society of Scotland SLT (Lyon Ct) 2 at 4.]

On Nobility

Lord Mackay in the Court of Session in Maclean of Ardgour v. Maclean
(1941 S.C. 613, at p. 650):

"...I do not think precedent supports the view in a matriculation of
old arms that an insertion of the affirmation of "nobility" in the house,
or the designation of a house as "armigerous," in the entry as authorised,
is usual and good practice. The argument of Mr. Innes was no doubt powerful,
that all bearing of arms was the badge of nobility, and therefore, that
anyone having Arms, ("having ancient Arms at least," was what he
said) was presumed to be noble. I am unwilling, however, in the view of
the modern practice of granting arms in respect of outstanding specific
legal or literary services and such like, and or course only to people
who, in the opinion of the Lyon, are fit to bear Heraldic Arms, to affirm
that a grant of arms necessarily imports nobility in the grantee."

Innes of Learney, as Albany Herald, published the article "Diploma of nobility
for de Landa" in the Juridical Review (1940, p. 181-221) on the
subject. If he had any evidence that Scottish grants of arms had ever contained
language to the effect that they granted or conferred nobility, that article
was the perfect place to offer it. Not only does he provide none, but he
cites instead an English grants of arms of 1541 (p. 198) and a Spanish
grant of arms of the 19th century (the de Landa diploma of the title, p.
218 footnote 2)), which happens to also be a confirmation of nobility,
to support his contention that Scottish grants of arms confer nobility.
Any student of Spanish heraldry knows full well that Spanish grants of
arms neither confer nor recognize nobility. Moreover, existing examples
of Scottish patents of arms prior to Innes of Learney's
tenure contain no such language.

Stevenson's Heraldry in Scotland (Glasgow, 1914, 2 volumes),
the authoritative work before Innes of Learney, makes no mention whatsoever
of conferral of nobility by the Lord Lyon. Neither does
Bankton in his Institutes.
So far, I have not found trace of such a power or practice anywhere before
Innes of Learney's time.

Innes of Learney formulates the bizarre theory that a coat of arms is
a fief annoblissants, an ennobling fief (Scots Heraldry, 2d ed.,
p. 22):

When we say that arms are "property" yet "tokens of nobility",
it is necessary to point out that in most ancient realms the concept of
nobility has been related to the tenure of noble terre and that
arms themselves are regarded as incorporeal fiefs annoblissants.
Much of the interest of Scottish heraldry lies in the fact that the law
and practice of arms in Scotland are living and functioning survivals of
old feudo-tribal laws of honour as applied to "Earldoms, Baronies and other
impartible tenures" as these existed in the eleventh to seventeenth centureies.
Lyon Court and the Armorial Noblesse of Scotland are thus a living survival
of the old mediaeval realms, and accordingly of immense legal and social
interest, perpetuating as they do the organisation and concepts of the
old clan or family organisation of the kingdom."

The assertion that nobility derived from land tenure is sheer nonsense:
although there were such things as fiefs annoblissants in French
feudal law, they were rare, and disappeared fairly early. Nobility
was not related to land, but to blood. Nowhere in Europe have arms
ever been considered as fiefs.

That armorial bearings were not restricted to nobles is evidenced by
statutes of 1400 (Acts of the Parliament of Scotland, I, 482) and
1429 (ibid, I, 575) which laid down that every freeholder should
have his proper seal of arms with which, and not merely with his signet,
he or his attorney was bound to compear at the head court of the shire
when retours had to be made out and sealed (cited in David M. Walker: A
Legal History of Scotland, Edinburgh 1990; vol. 2, p. 708).

"[...]a coat of arms is a fief annoblissant, similar to a territorial
peerage or barony, the grant of which determines that the grantee 'and
his succesors in the same are, amongst all Nobles and in all Places of
Honour to be taken, numbered, accounted and received as Nobles in the Noblesse
of Scotland' [nobility clause in any grant of arms.]
This ennoblement confers a status and a precedence on the holder of the
arms, whether a person or a corporate body. [Law Society
of Scotland 1955 SLT (Lyon Ct) 2.]

Notice that the only references given are to Innes himself. Nobility
is defined nowhere in the Stair Encyclopaedia, or in any book on Scottish
law.

On Chiefships and Chieftainships

In Innes of Learney's Scots Heraldry (2d edition, p. 11), one finds
the following statement (references given in footnotes are presented here
between brackets):

"Disputes over Chiefship of a "noble and armigerous family"
and "Chiefship of Name and Arms" were in 1937 expressly adjudged competent
before Lyon and accordingly remitted to Lyon [1941 Session Cases, pp. 616,
635, 654]. Moreover, Sir George Mackenzie has laid down that the
Chief of a Family and Head of a Clan are synonymous [Works ii, 618],
and the evidence in the Maclean of Ardgour proof, 1938, corroborated this
[Clans, Septs and Regiments of the Scottish Highlands, 4th ed.,
App. xxxix]. Both Lords Shaw and Dunedin identify chiefship of a clan with
right to the undifferenced arms [Ibid., p. 190; 1922 Session Cases
(H.L.), p. 42, 47].
Lyon Court is accordingly the judicature which can, and does, adjudicate
upon Chiefship of Clans [...]"

Most of the references given (except when Innes cites Innes, of course)
corroborate the assertions. (Sir George Mackenzie does say, on p. 74
of his Science of Herauldry, 1680: "... Chief; for so we call
the representative of the Family, from the French Word chef, a head:
and in the Irish with us the chief of the Family, is call'd the head
of the Clane").
On the other hand, the judges in the
Court of Session made very clear and explicit statements denying Lyon the
power he attributes himself.

" From an allowance of proof the Court excluded all questions relating
to the chieftainship and the relative positions of the parties within the
clan, holding that neither chiefship of a whole clan nor chieftainship
of a branch of a clan was a legal status justiciable in a court of law,
but had the character of a social dignity only, and, accordingly, that
the Lord Lyon had no jurisdiction to decide the disputed question of who
had right to the chieftainship either directly or incidentally when disposing
of the claims for supporters and for a birthbrief. [..] Observations: [...]
on the meaning of "chief" and "chieftain" in the law and practice of arms,
with opinion by the Lord Justice-Clerk that in the recorded cases in which
a Lord Lyon had made a declaration of chiefship the declaration had been
merely a ministerial act and not a finding in his judicial capacity upon
a disputed question."

"There is no instance in the registers of any judicial decision by
Lyon in a disputed question of chiefship or chieftainship. The only instance
founded on by the petitioner was the finding by Lyon regarding the chiefship
of Clan Chattan on 10th September 1672 [...] It will be noticed that this
declaration proceeded simply upon a perusal by Lyon of evidents and testimonies
from "our histories, my own Registers, and bands of Manrent" and that it
was in no sense a finding pronounced in a lis or contested process. It
vouches nothing beyond that in this particular case Lyon made a declaration
of chiefship. Similarly, the matriculation of the arms of the chief of
the M'Naghtons proves nothing [...] This is not a decision in a lis: again
it is simply a recording of the dignity of a chiefship acknowledged by
attestation. The only other case to which reference need be made is the
case of Drummond of Concraig [...] This is the only instance to which we
were referred of a chief of a branch being mentioned, and it is only designation.
It is not a declarator or a declaratory finding of chieftaincy.
In none of the writs which were before us can I find any support for a
conclusion that Lyon at any time either claimed, or exercised, a jurisdiction
to determine disputes as to which of competing claimants to chiefship or
chieftainship was to be preferred."

(action of) declarator (Scots Law): a form
of action in the Court of Session, in which something is prayed to be declared
judicially, the legal consequences being left to follow as a matter of
course (Oxford english Dictionary).

"I agree with your Lordships that Lyon has no jurisdiction to entertain
a substantive declarator of chiefship of a Highland
clan, or of chieftainship of a branch of a clan. [...] The question of
chiefship of a Highland clan, or chieftainship of a branch of a clan, is
not in itself, in my opinion, a matter which involves any interest which
the law can recognise. At most, it is a question of social dignity or precedence.
In so far as it involves social dignity it is a dignity which, in my opinion,
is unknown to the law. It was decided in the case College of Surgeons
of Edinburgh v. College of Physicians of Edinburgh (1911 S.C. 1054),
that Lyon has no jurisdiction except as is conferred by statute, or is
vouched by the authority of an Institutional writer, or by continuous and
accepted practice of the Lyon Court. [...] in my opinion, there is no practice
or precedent which entitled Lyon to decide a question of disputed chiefship
or chieftainship, either by itself or incidentally to a grant of arms.
There is direct authority, by way of precedent, for Lyon considering an
acknowledged chiefship of a clan as incidental to a grant of arms with
supporters. The case of Macnaghton (13th January 1818, Lyon Register, vol.
ii, p. 172) is a case of that kind. But it is a different thing altogether
to say that in a case of dispute Lyon has jurisdiction to determine and
declare who is chief. For that no precedent has been cited to us. In my
opinion, it is outwith his jurisdiction to decide because (1) at best it
is a question merely of social status or precedence; (2) this social status
is not one recognised by law; and (3) and, most important of all, it depends,
not upon any principle of law of succession which can be applied by a Court
of Law, but upon recognition by the clan itself. Like your Lordship, I
am at a loss to understand how any determination or decree of Lyon ever
could impose upon a clan a head which it did not desire to acknowledge.

Since the accession of Innes of Learney as Lyon in 1945, there have been
three cases in Lyon's Court explicitly involving chiefships. In only one
case, the recent Gunn (1996) case, was there a dispute. It took the form
of two petitions filed at the same time for recognition to the undifferenced
arms and the title of Chief. Lyon's decision is carefully worded, avoiding
any mention of chiefship, and merely rejecting one petition (on sound genealogical
ground) and allowing the other petitioner to offer proof of his claim.
The two other cases only involved a petition by an individual. Therefore,
there has not been any suit or legal action (what the Lord Justice-Clerk
calls "lis or contested process") involving a chiefship. Nor could there
be, it seems to me: Lyon's pronouncements of chiefships have no legal value,
as appears from the statements above, and could not be the subject of legal
action. They can be seen as a service provided by Lyon to various clans,
helping them resolve the question of chiefship for their own purposes.
If a dispute arose within a clan over chiefship, there would be no way
for Lyon to resolve the dispute in an enforceable manner. The prestige
of his office is the only thing that underlies his recognitions of chiefships.

My sense is that, in the matter of chiefships as in the matter of precedence,
one should heed the words of the Lord President in Royal College of
Surgeons of Edinburgh: "[...] if people are not dealing with a question
of law, not going, as here, by means of a petition to ask a decree, but
going to a person to settle a dispute between them, I could not imagine
any more proper person to go to than the Lyon. And if these two bodies
chose to agree between themselves that they will abide by his decision,
I see no reason why—not sitting in his Court, but simply as a high authority
on such questions—he should not decide such a dispute. No more proper person,
I think, could be found." It is in that spirit that, with the revival of
clans in recent decades, people in Scotland and abroad have naturally turned
to Lyon as an arbiter, since, indeed, no more proper person could be found.

Origins of Regulated Heraldry in Scotland

The idea expressed by Innes of Learney that modern Scottish heraldry with
its strict regulation and the Lyon Court are survivals of the Middle ages
is patently false. John H. Stevenson, Marchmont herald, wrote a much
better description of the historical evolution of heraldic law in Scotland.
In Heraldry in Scotland (1914, p.24-33), he writes:

"In the choice of badges and arms in the days of the beginnings
of heraldry there is no doubt but that every man did only that which was
right in his own eyes. [...] In the early times of which
we speak the Civil Law, which was otherwise known as the Roman Law, was
accepted in Scotland [...] So in Scotlant, in the complete absence of any
indication of the existence of any special law or custom, we turn for the
earliest authority on the law in force with us to the pages of Bartolus
a Saxo Ferrato. [...] The law of the fourteenth century
relating to armorial bearings as it is laid down by Bartolus recognizes
a right in any man to assume a distinctive coat of arms at his own hand,
and his right to redress against any one who afterwards adopts the same
arms to his detriment. [Stevenson describes at length Bartolo's
doctrine, then cites as the most remarkable Scottish manuscript on the
subject, Sir Gilbert of the Haye's Buke of the Law of Armys, which
is a translation of Bonet's Arbre
des Batailles and follows Bonet and Bartolus on the doctrine of free
assumption.] We see in this way that the recognition of rights
in armorial bearings preceded by a long period the restriction of these
rights to bearings which had been granted by the Sovereign or his officers.
[Stevenson then cites the writs
of 1417] The form of the writ of 1417, however, now in the Record Office
(Close Roll, 5 Henry V. m. 15. dor), does not mention the heralds, but
only persons 'having sufficient power' to grant arms,—feudal lords, commanders
of armies, etc., probably. As late as the year 1486 the writer of the heraldic
part of the Boke of Saint Albans, following Nicholas Upton (c. 1445), concludes
that if any arms are borne because they are given by a herald, 'thoos armys
be of no more auctorite than thoose armys the wich be taken by a mannys
awne auctoritie.' This passage is evidence, however, that the transition
of opinion had begun; and the later law of the necessity of a grant of
arms appears in the sixteenth century. It is laid down then by Tiraqueau,
who is followed in the next century by Sir George Mackenzie. [...] Before
the century was out an Act appeared on the Statute-book (1592,
cap. 125) the terms of which show that by this time the law of arms
of to-day was fully established.

Elsewhere (pp.61-2) he writes: "If we may judge by the analogy of other
countries, the recognition of the authority of these officers [officers
of arms of Scotland] to regulate the assumption of arms, and the theory
that right to bear any particular ensignes flowed only from the King, were
growths of the fifteenth century, fully established only in the sixteenth.
[...] Sir George Mackenzie, in 1680, reports a case from which we
learn that Lyon's armorial jurisdiction was recognized about the year 1550."

This eminently sensible account leaves no room for the vague medieval
mists of Innes' imagination.

Lord Lyon and the Devolution

A number of constitutional changes took place with the Scotland
Act of 1998. However, Schedule 5 of the Act makes clear that certain
matters are reserved, among others "honours and dignities or the functions
of the Lord Lyon King of Arms so far as relating to the granting of arms";
but that is not the case for "Lord Lyon King of Arms in his judicial capacity",
which is therefore subject to the powers of the Scottish Parliament.

The Abolition of Feudal Tenure Act of 2000 (2000 asp 5) notes explicitly
(sec. 62) that " Nothing in this Act shall be taken to supersede or impair
the jurisdiction or prerogative of the Lord Lyon King of Arms."